Soro v Minister for Immigration, Citizenship, Migrant Services and... [2022] FCA 940 | Case summary

Overview 1 The applicant seeks to challenge the validity of a decision of the second respondent, the Administrative Appeals Tribunal, made on 17 September 2020 that a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke a mandatory cancellation visa decision under the Migration Act 1958 (Cth) (the Migration Act) was not reviewable. This caused the Tribunal to dismiss the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (which provides that the Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal). 2 The applicant requires an extension of time to challenge the validity of the Tribunal's decision. The Tribunal's decision was made on 17 September 2020. The applicant filed his application for review on 8 March 2022. Under s 477A(1) of the Migration Act, the application for a remedy in relation to a migration decision had to be made within 35 days of the date of the decision, however, that period can be extended under s 477A(2) if: (a) an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and (b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 3 The applicant contends that the Tribunal's decision is vitiated as a result of fraud by a third party. I am not persuaded by the applicant's case. In these circumstances, I am also not persuaded that it is in the interests of justice for the applicant to be granted an extension of time to challenge the Tribunal's decision. Had I reached a different view about the substance of the applicant's fraud case, I also would have reached a different view about his application for an extension of time. If fraud had been established or was near to being established, I would have concluded that it was in the interests of justice for the applicant to be granted the extension of time despite the lengthy period of the extension and the reasons for the delay being a lack of funds. As it is, I must dismiss the application with costs for the following reasons.

Consideration 24 The principal problem for the applicant is that his evidence does not establish fraud on the Tribunal by Mr A. 25 Mr A was not called to give evidence (one reason I have chosen to call him Mr A). This does not mean that I am bound to accept the whole of the applicant's evidence. Nor does it mean that I am bound to infer that Mr A's evidence would not have assisted the Minister's case. I may draw that inference or may more readily accept the applicant's evidence if the fact that the Minister did not call Mr A may be characterised as an unexplained failure to call Mr A when it might reasonably be expected to have done so. However, the burden of proof remains on the applicant and in deciding if the applicant has discharged that burden I must consider, amongst other things, the gravity of the matters alleged: s 140(2)(c) of the Evidence Act 1995 (Cth) (Evidence Act). The allegation of fraud by a prison officer in the discharge of the prison officer's functions on a prisoner at risk of deportation is a most serious allegation. The prison officer is not an employee of the Department. There is no reason to characterise the prison officer as a person in the "camp" of the Minister. Both parties could have sought issue of a subpoena requiring Mr A to give evidence. Neither did so. Similarly, the fact that the prison administration clerk asked Mr A to "case note so we have a record that inmate received documents" does not mean that the Minister has that case note. Either party could have subpoenaed the NSW Department of Communities and Justice for that case note. 26 In my view, the evidence falls far short of establishing any form of dishonest intent on the part of Mr A. 27 The material facts are these. It is apparent that the applicant did not have a clear recollection of when he was handed the notification letter of 21 April 2020. In his affidavit he said he recalled being handed that document "in or about May or June 2020, about three or four months before [he] was released from prison at the end of August 2020". The applicant was first called upon to recall when he received the document in late August 2020 before he was released from prison and taken into immigration detention. He said to the Border Force officers he was notified of the decision "about three or four months ago". When he completed the online review application to the Tribunal, he put the date 12 May 2020 as the date he received the notification, saying he was not sure of the exact date but recalled that it was about three or four months ago. This is all vague and approximate evidence. 28 It is not surprising that the applicant could not recall when he received the notification letter and accompanying documents from Mr A. In ordinary human experience, recalling a time of an event is often much more difficult than recalling the substance of the event. Given that he apparently believed that Mr A would lodge the review application on his behalf and the hearing would follow automatically (as was submitted for the applicant), the applicant had no particular reason to recall the date that Mr A handed him the documents. There is also not a material difference between three to four months ago (the applicant's recollection) and four to five months ago. If the range was four to five months ago, the range would include the date 21 April 2020. 29 Given the vagueness of the applicant's own evidence about the date he received the documents from Mr A, it is impossible to believe that the date he received the documents and had the discussion with Mr A is other than 21 April 2020. The objective contemporaneous evidence supports that conclusion. That is the date Mr A received the documents. That is the date Mr A sent the acknowledgment document back as requested. Moreover, the applicant said he did receive the documents from Mr A. He also said that he signed a document as requested and returned it to Mr A. He said to the best of his recollection he also dated the document. Again, it is apparent that the applicant had no clear and unequivocal recollection of dating the document. Yet if the document the applicant signed is not the acknowledgment document which Mr A sent back on 21 April 2020, then where is that document and what was Mr A doing either on 21 April 2020 or on 12 May 2020 (the date the applicant says he signed and to the best of his recollection dated the document)? 30 The applicant would have it that Mr A was engaged in an elaborate fraud for purposes unknown and, frankly, unfathomable. The applicant would have it that, despite receiving the documents with a specific request that two copies of each be handed to the applicant on 21 April 2020 and despite sending back a signed acknowledgment of the receipt of the documents by the applicant as requested later on 21 April 2020, Mr A did not give the documents to the applicant on 21 April 2020. Instead, for reasons known only to himself, Mr A signed and dated the acknowledgment document on his own behalf as a witness and on behalf of the applicant and sent it back to the Department as requested. Then, on the applicant's case, Mr A in fact gave the applicant the documents on or about 12 May 2020, when Mr A asked the applicant to sign a document, the applicant did so and to the best of his recollection dated the document, and then Mr A apparently did not send the acknowledgement document signed and dated by the applicant back as requested, but (I infer) did something else (unknown) with the document. 31 The profound unlikelihood of this sequence of events is inescapable. It is far more likely that the applicant is simply wrong that Mr A gave him the documents about three to four months before late August 2020 and that Mr A in fact gave him the documents about five months before late August 2020, which would be about 21 April 2020. There is nothing unbelievable or discreditable about a person thinking an event occurred about four weeks later than it in fact occurred. It is an everyday circumstance with which we are all familiar. Moreover, the applicant's oral evidence disclosed that, like everyone, his recollections could be wrong. For example, he did not accept that he asked prison employees to email things from time to time on his behalf, but he clearly did so. He agreed (sensibly) that it was possible he had forgotten things he had been told. He also did not know if he had or had not sent the Department a page missing from his statement in support of revocation of the cancellation. 32 In these circumstances, I have no doubt that the discussion with Mr A when Mr A gave the applicant the documents and asked him to sign a document occurred on 21 April 2020. 33 The next issue is the applicant's evidence that the acknowledgment document is not the document he signed or thought he dated as the signature is not his signature and the date on it was not written by him. Assume for the moment that the applicant is correct. What is the significance of the fact that the acknowledgment document is purportedly signed by the applicant as the person acknowledging receipt of the notice of the decision not to revoke the visa cancellation? 34 The applicant would have it that it should be inferred that Mr A signed and dated the acknowledgment document purporting to be the applicant as part of a dishonest scheme inflicted on the applicant which included misrepresenting to the applicant that he had signed an application for review of the non-revocation decision to the Tribunal. Alternatively, if not part of that dishonest scheme, the applicant would have it that the fact that Mr A signed and dated the acknowledgment document purporting to be the applicant demonstrated Mr A's dishonesty either to the applicant or generally, making it more likely that Mr A had engaged in dishonest misrepresentations to the applicant when handing the applicant the documents and procuring that the applicant sign a document. 35 It will be apparent that the Minister's submission that the acknowledgment document is inadmissible tendency evidence under s 97 of the Evidence Act can apply only on the second alternative. On the first alternative, the acknowledgment document is not being adduced to prove any tendency on the part of Mr A. It is part of the alleged fraudulent scheme. Even on the second alternative, it would be difficult to conclude that the acknowledgment document does not have significant probative value given that it is a key component of the applicant's case of fraud by Mr A on the Tribunal. The fact that a case of fraud is ultimately rejected does not mean that, for the purpose of deciding the case, a document such as the acknowledgment document does not have significant probative value. 36 Let us take the acknowledgment document at its worst. From the face of the acknowledgment document, I would accept that the person who signed as the witness (I infer, Mr A) dated both his signature and the space below the signature purporting to be that of the applicant. This involves a comparison that, according to the parties, I am entitled to undertake: Adami v The Queen [1959] HCA 70; (1959) 108 CLR 605 at 616-618. This conclusion is reinforced by other evidence disclosing that the applicant's handwriting of dates looks nothing like the handwriting under the applicant's purported signature on the acknowledgment document. An example of the applicant's handwriting of a date is below: 37 In and of itself, there is nothing dishonest about a person such as Mr A dating a document in circumstances where the person knows that, in fact, the applicant did receive the documents on that date and did sign the acknowledgment document. In this regard, it is necessary to recall that the applicant's evidence went no higher than that to the best of his recollection he dated the document that he signed. It is also relevant that the applicant said this only in his second affidavit and not in his first affidavit, in which he said only that he signed the document. The fact is that the applicant may well be wrong about this apparently belated recollection in his second affidavit, just as he was wrong about other recollections. It is not the kind of fact that would stand out in a person's mind. 38 Further, I have already found that the applicant is wrong in his estimation that Mr A gave him the documents and procured his signature about three or four months before the applicant's release from prison. That is, I am satisfied that these events in fact occurred on 21 April 2020. Considered in isolation from the signature issue (discussed below), the worst that could be said is that: (a) the applicant is wrong and he did not date the document he signed on 21 April 2020, and (b) on seeing that the applicant had not dated the document in the space available for that purpose, Mr A dated the document. If this is what occurred, there is nothing dishonest in Mr A having done so. It would be seen by Mr A, not unreasonably, as nothing more than a routine record of the date Mr A in fact gave the applicant the documents. 39 It is necessary, however, to consider the signature issue along with all of the other evidence. The applicant is adamant that it is not his signature on the acknowledgment document. There are examples of the applicant's signature in evidence. They are the two signatures below on the left, which may be compared with the signature purporting to be that of the applicant on the acknowledgment document which is on the right: 40 The two signatures on the left are not the same as the signature on the right. 41 Again, take the evidence at its worst. On the evidence, Mr A in fact gave the documents to the applicant and the applicant signed (and perhaps dated) a document to acknowledge receipt. As I have said, I have no doubt that this occurred on 21 April 2020. Then, on the applicant's case, the whereabouts of the document the applicant in fact signed and perhaps dated on 21 April 2020 is unknown. Instead, when he came to sending back the signed acknowledgment document as requested, Mr A signed the document twice, once correctly as the witness and once dishonestly purporting to be the applicant and sent that back instead. 42 Once again, I find this profoundly implausible. On the evidence, Mr A received the document package by email at 10:22am on 21 April 2020 with instructions to hand two copies of the documents to the applicant and to have the applicant sign page 3 of the notification letter (the acknowledgment document) and to send back the signed acknowledgment document. Mr A then went to the applicant, had the conversation the applicant alleges occurred, procured the applicant's signature on a document, and then at 1:24pm on 21 April 2020 sent back not the document the applicant signed and perhaps dated, but the acknowledgment document with the purportedly forged signature. The obvious questions which cannot be avoided are: (a) what happened to the document the applicant signed and perhaps dated, and (b) if he misplaced or lost the document the applicant signed and perhaps dated, why would Mr A simply not print another copy of that document and go back to the applicant to have him sign it again? 43 Leaving aside these unanswerable questions, there is another matter. Even if Mr A did sign and date the acknowledgment document purporting to be the applicant, he may have done so without any dishonest intent. It must be inferred that Mr A knew that he had in fact given the documents to the applicant as requested and had got the applicant to sign a document. If, when it came time to send the signed document back as requested, Mr A could not locate the signed document, Mr A may have seen no harm in signing for the applicant in circumstances where he knew the applicant had received the documents. Mr A would have been wrong to see no harm in doing so, but he would not have been dishonest. 44 But to return from speculation to the civil standard of proof as required to be applied under s 140 of the Evidence Act, the discrepancy between the usual signature of the applicant and the signature on the acknowledgment document does not support the applicant's allegations of fraud. 45 First, it is within ordinary human experience that a person may have more than one signature, in particular, a full signature and a signature they use to initial documents. 46 Second, the applicant gave evidence that when he signed the document, Mr A was standing in front of him and the applicant was also standing up. It does not take much to infer that in these circumstances the applicant's signature on the document might have been rushed and might have been done without the benefit of resting against a hard surface. Both circumstances are capable of explaining the difference in signatures. 47 Further, while the applicant was adamant the signature was not his, the applicant's oral evidence exposed a tendency to the self-serving. In particular, the applicant tried to give a different version of his discussion with Mr A in oral evidence, with some extra details that might be considered to have assisted his case. This exchange occurred during the applicant's cross-examination: And so, you signed it standing up with a pen that he gave you? --- Yes. And did you date it? --- Yes. You dated it? --- Yes. Is it possible that Mr [A] dated it for you and you just signed it? --- No. And just to be clear, you never saw an AAT application in that envelope? --- No. And you didn't write out your name on any application? --- No, I just signed because he said that he would fill it out for me. And you didn't write out what the decision was that you wanted reviewed in the AAT? --- No. I just thought it was application to lodge in and get ..... that's it and And you didn't tell Mr [A] why you thought that the decision was wrong? --- No. Is it possible that you were confused about what Mr [A] had in the envelope? --- Well, I reassured him and asked me, "That's the AAT forms?" And he shook his head, he said "Yes, he's got to sign everything then" Do you accept it would be unusual for a prison officer to prepare a court application for you? --- That's what he said. Has a prison officer ever prepared an application to a court for you before? --- No. Do you accept that not ever in your time in custody has a prison officer ever prepared a court application for you and sent it off? --- No. Now, I'm going to suggest that Mr [A] never said to you that he had an AAT application. What do you say to that? --- I asked him and he said he's going to sign and send it off. He has already filled it out. He's going to sign what and send it off? --- No, he said, "You have got to sign," and he will send it off. He has already filled the AAT forms out. And so he never said he had an AAT application did he? --- No, he said, "Sign it, I will send it off." So, he never said he had an AAT application. He just said, "Sign here, and I will send it off"? --- Yes. All right. I want to suggest to you that what you actually signed on that day was the receipt of notification of the non-revocation decision? --- Must have been. What do you say to that? --- I thought it was AAT's form, that's what I signed. Was it possible that it was the receipt of the non-revocation decision? --- I'm not sure. Because you didn't read it? --- No, because he told me to sign. 48 This evidence can be compared with the applicant's affidavit evidence. The key differences are: (1) in the oral evidence the applicant said he did date the document whereas in his affidavit evidence (as I have said, the second affidavit only when the significance of the date might well have become apparent to the applicant) he said only that to the best of his recollection he dated the document: the latter evidence is far more plausible; and (2) in the oral evidence the applicant said twice that Mr A had already filled out the "AAT forms" and that Mr A had already filled out the "AAT application". But the applicant said no such thing in his affidavit evidence. Moreover, in his oral evidence the applicant agreed that Mr A never mentioned an "AAT application" and agreed that he, the applicant, never looked at the document he signed. As such, the applicant could not have honestly said that Mr A had already filled out the "AAT forms" and that Mr A had already filled out the "AAT application". The unavoidable inference was that the applicant was tailoring his oral evidence to better support his case. 49 In these circumstances, I do not accept the applicant's denial that the signature on the acknowledgment document is his signature. The applicant may genuinely believe the signature is not his, but the weight of the evidence is to the contrary. 50 Three other observations should be made now. 51 The first observation is that the applicant submitted that I could compare the signatures in evidence to support an inference that the signature on the acknowledgment document was not the applicant's signature. The Minister did not disagree (see the reference to Adami above). If I can compare the signatures in evidence to support an inference that the signature on the acknowledgment document was not the applicant's signature, I must also be able to do so to support the inference that the signature is that of the applicant. 52 The point is this. On the applicant's case, if Mr A signed the document purporting to be the applicant, he could have done so either trying to imitate an example of the applicant's signature or by just making a signature up. 53 In the former case, it would seem that Mr A must be a very bad forger because he has made no attempt to reproduce the majority of the distinctive features of the applicant's signature such as the large right leaning "J" at the beginning, the following "o" and "e", and the large right leaning "S". What are the chances that Mr A (or anyone else), if they were trying to copy the applicant's signature, would be such a bad forger that they were incapable of making an effort to reproduce these major characteristics of the applicant's signature? 54 In the latter case, it would seem that in simply making up a signature purporting to be the applicant's signature, Mr A must have coincidentally landed on the same or a very similar end to the applicant's signature consisting of a horizontal loop as follows (the two examples on the left being from the applicant and the example on the right being from the acknowledgment document): 55 What are the chances that Mr A (or anyone else), if they were simply making up a signature, would coincidentally stumble upon the very similar illegible horizontal loop that forms the end of the applicant' signature? 56 The answers to these questions are obvious. It seems to me that there is a vanishingly small chance that Mr A or anyone else was a hopeless attempted forger of the applicant's signature or, in making up a signature for the applicant, coincidentally stumbled upon the very similar illegible horizontal loop that forms the end of the applicant's signature. 57 Where all this leads is equally obvious. The applicant did sign the acknowledgment document. He did so standing up. He did so while Mr A was waiting for him. He did so on 21 April 2020. The signature on the acknowledgment document is his, even if he does not recognise it because it is a form of shorthand signature he used on that occasion (and even if he has never used that shorthand version before or since that occasion). 58 The second observation is that the applicant's case theory involved threads of evidence, each of which the applicant relied on as reinforcing the inference of dishonest conduct by Mr A. Therefore, as the applicant would have it, the applicant did not sign anything on 21 April 2020 at all, so Mr A must have forged the acknowledgment document altogether, then sent the forged acknowledgment document back as requested intending to misrepresent the position to the Department, and then when the Department could not find the acknowledgment document, he re-sent that forged document again on 31 August 2020, further misrepresenting the position to the Department. According to the applicant, this all reinforced Mr A's dishonesty. 59 It is well-established that evidence might consist of strands in a cable and not links in a chain, and that the individual strands in a cable may not satisfy the applicable standard of proof if considered in isolation, but may do so if considered with the other strands: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579. But this evidentiary principle depends on the individual strands being at least potentially probative of a fact in issue. If each strand, taken together or separately, is profoundly implausible, then the strength of the whole evidentiary cable cannot be any the greater. In this case, every strand is profoundly implausible and no one strand strengthens another. 60 The third observation, related to the second, is that the applicant's references to the applicant allegedly not having received an additional letter dated 14 February 2020 from the Department are immaterial. The applicant says he did not receive that letter. However, that is not a ground of review. Further, the letter noted that the Department had not received p 8 of the applicant's letter and the evidence is that, one way or another, the Department received a version of the applicant's letter including p 8 (albeit missing a different page). In terms of this review application, these events go nowhere. If anything, they suggest that the applicant has again not correctly recalled all events, which is unsurprising. 61 We come at last to the conversation between Mr A and the applicant which is of central importance. The applicant said he read the letter dated 20 April 2020 giving him notice of the revocation including that he had nine days to lodge a review application with the Tribunal. The applicant said it probably took him a "good two minutes" to read the letter. He knew that it was very important that he make an application to the Tribunal within the nine days. He knew that if he did not do so it would be the end of his case and his visa would remain cancelled. He agreed that he knew he needed to be careful to make sure his application to the Tribunal was lodged on time. He agreed that he would have been careful to make sure his application to the Tribunal was done properly. According to the applicant, he asked Mr A for "the forms for lodging an application for review to the AAT". Mr A said "just sign here and I'll send them off". The applicant said "[i]s this for the AAT application". Mr A said "[y]es, I'm going to send if off for you, just sign here". The applicant said he did so without reading what he was signing but he could see there was writing on the document he was signing. 62 If this is an accurate version of the conversation, it does not come close to supporting a finding of fraud or dishonesty by Mr A. The documents package Mr A received on 21 April 2020 instructed Mr A to hand two copies of the documents to the applicant and to have the applicant sign page 3 of the notification letter (the acknowledgment document) and to send back the signed acknowledgment document. It also instructed him to inform the applicant that he had nine days from the date of receipt of the attached notification package to lodge an AAT review application. One honest explanation for the conversation between Mr A and the applicant is obvious. For example, Mr A might well have believed that if the applicant signed the acknowledgment document and Mr A sent it back as requested, this would ensure that the applicant had made an application for review to the Tribunal. This is not unreasonable given the terms of the instructions Mr A received. Mr A might readily have conflated the concept of the applicant having to sign the acknowledgment document and Mr A having to send it back with the concept of the applicant making an application for review with the Tribunal. Moreover, it would seem that the applicant also shared this belief. 63 What cannot be inferred is that Mr A, a prison officer and not an employee of the Department, knew anything about the making of applications for review to the Tribunal or read any part of the documents apart from the instructions to him. As such, it is not the case that Mr A must be inferred to have known that, as the applicant put it: a. Mr [A] never received any instructions from [the applicant] to prepare an Application. b. Mr [A] held himself out as providing immigration assistance to [the applicant] pursuant to s.276 of the Migration Act but he was neither a registered migration agent nor a legal practitioner and therefore could not give any immigration assistance pursuant to s.280(1) and (3) of the Migration Act. c. Mr [A] did not have sufficient information about [the applicant] to complete an Application. d. Mr [A] failed to show and explain to [the applicant] what was in the Application. e. Mr [A] failed to give [the applicant] a copy of the Application, which is such an important document. 64 It is true that, being a prisoner, the applicant was not in control of his circumstances. As the Full Court said in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578 at [35], a prisoner is: …not at liberty. They cannot do what people at liberty can do, and they cannot be expected to do what people at liberty can be expected to do. They are at the mercy of their gaolers and must depend on them to transmit, whether by some electronic or digital means or by post or other physical means, their representations in favour of revocation to the Minister. 65 This context informed the conclusion in that case that the Minister's submission that a representation is not "made" for the purposes of ss 501C(3)(b) and 501CA(3)(b) of the Migration Act until it is received must be wrong. 66 None of this means that it should be inferred in the present case that Mr A was involved in any dishonesty in his dealings with the applicant. For what it is worth, I agree with the tenor of the applicant's submissions that the inability of the Tribunal to extend the nine day period may work the kind of "particularly harsh and unjust consequence" that informed the Full Court's process of construction in Stewart at [37]. I agree that the existing legal principle that fraud alone (and not gross negligence) by a third party can vitiate an exercise of statutory power by the Tribunal can also work the same kind of harsh injustice. I agree that a person who is incarcerated is placed in a position of special disadvantage by the exclusion of any power on the part of Tribunal to extend the time for the making of an application for review by reason of their lack of control over their own circumstances and dependency on others to ensure their intentions are fulfilled. 67 However, as the High Court explained in Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 385 ALR 212 at [15]: The insistence by this Court in SZFDE that a ground of review for fraud requires a focus upon the manner in which the fraud adversely affected the operation of the particular system of review, and therefore the statutory functions and powers of the Tribunal, was appropriate because grounds of judicial review arise by implication from the statute which provides the jurisdiction to make the decision. Just as it is usually implied that a decision will be invalid if a decision-maker exercises their powers fraudulently, so too it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE, "there are sound reasons of policy" why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant. 68 The circumstances of the present case bear no resemblance to those in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189, referred to by the High Court above. Mr A wearing a uniform which had two stars on it giving the applicant incorrect information is not comparable to a person misrepresenting themselves as a solicitor and migration agent dissuading a person from appearing at a hearing, as occurred in SZFDE. 69 Moreover, in the present case, the applicant had only to read the document he was signing to appreciate that it was not an application to the Tribunal. The applicant also had only to read the document headed "How to apply for merits review by the Administrative Appeals Tribunal" which he was given to know that Mr A could not have lodged an application to the Tribunal on the applicant's behalf merely by the applicant signing a document. While it is not necessary to so conclude, the applicant's state of mind comes close to a reckless indifference as to the truth or falsity of the alleged representations by Mr A such as to negate any legal effect of the alleged fraud: Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; (2019) 269 FCR 464 at [136]-[143]. 70 As the Minister submitted, in the present case: The inference arising from the totality of the evidence is that the applicant was provided with the Notice on 21 April 2020, and thought that an application for review happened automatically. When he realised it did not, he made an application for review to the Tribunal. As regrettable as that circumstance is, it cannot operate to extend the time in which the applicant could make an application for review: see CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 at [43]-[44] (Kenny J). That is a consequence of the legislative scheme that Parliament has put in place: see generally Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [[2021] HCA 19] (2021) 95 ALJR 557 at 565 [29]. 71 In these circumstances I need not resolve the legal effect of the alleged fraud had the fraud been established. By this, I have in mind the Minister's submission that there was no exercise of statutory power of the Tribunal that the alleged fraud infected or disabled. The application for review was not lodged within time and the Tribunal's jurisdiction was not engaged. See the discussion in Awon v Minister for Immigration and Border Protection [2015] FCA 846 compared to SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 and SZQVV v Minister for Immigration and Citizenship [2012] FCA 871; (2012) 262 FCR 575. I have no conceptual difficulty with the proposition that a third party fraud may result in the Tribunal's jurisdiction not being engaged at all, and the courts must be able to remedy that wrong. My concern is with the proposition in SZQVV at [57] that, such a fraud having been established, the Tribunal may treat the application as having been made within time. Resolution of that question, however, should await a case in which the answer will be determinative. 72 For these reasons, the applicant's case fails. The application for an extension of time and the further amended originating application must be dismissed with costs. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.

Soro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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